Grand Jury on the Line

NEW HAVEN THE Connecticut grand jury system has come under a renewed attack over the last couple of weeks, this time because of its apparent failings in a case in which I am involved. Lorne Acquin, accused of committing nine murders in mid‐July, sits unindicted in the New Haven jail and state grand jury will not even begin to consider his case until Sept. 7.

By contrast, the man accused of the “Son of Sam” murders was arraigned within hours of his arrest and was brought before a New York grand jury four days later. It is difficult to understand why Connecticut takes six weeks to do what New York can do so quickly, and the disparity between the two systems must dismay any fair‐minded observer.

Connecticut's constitution says no person may be held on a murder charge without a grand jury indictment. Judges, struggling to reconcile that seemingly clear command with a snailpaced justice system, have resorted to the strained ruling that “held” really means “tried.” Legalistic idiocy of this kind has brought discredit to lawyers for a long time, but it is dismaying to see constitutional commands so cavalierly set aside—especially when the result is that citizens are locked up in plain defiof the law.

In Connecticut, grand juries are provided only for crimes punishable by life imprisonment or death. Our constitution requires grand jury indictment in such cases precisely because historically our people have believed that no one should be accused of so heinous an offense without first having the protec tion of review by 18 fellow citizens. Yet Lorne Acquin's case is typical of grand jury delays in Connecticut.

It is the rule and not the exception that people in our state accused of murder are required to sit in jail from one to three months before going before a grand jury. And it is not uncommon that a grand jury, having once reviewed the evidence, will refuse to indict.

Such abuses of individual rights have prompted many people to advocate changes in the grand jury system. Some have even advocated its abolition. Yet think it would be a terrible mistake abuses of this kind were used as an excuse for either dismantling or significantly restructuring the Connecticut grand jury.

There is nothing in the structure of our grand jury system that can be responsible for these delays. Although it is true that we do not have grand juries constantly sitting in Connecticut, as tliey do in New York, the convening of a grand jury can be accomplished in a few days at most.

The pool of eligible citizens from whom grand jurors are selected is the same pool used for selection of trial juries. Thus, a grand jury is convened simply by drawing names out of that pool and sending those drawn summonses to appear. Those summonses can be hand‐delivered by deputy sheriffs when necessary.

Why should that take six weeks? should not take more than two or three days.

Connecticut's grand jury system is unusual in a number of important ways. Unlike the practice in Federal courts and the courts of other states, no transcript or other record is made of the evidence presented to the grand jury; the accused person is permitted (within the court's discretion) to be in the grand jury room while witnesses testify and may question those witnesses, but may not himself be questioned by the grand jury; the defense attorney, however, may not be present.

Finally, perhaps the most significant of all Connecticut's unusual grand jury rules, the prosecutor is not permitted in the grand jury room. The prosecutor brings the witnesses to court and sends them into the grand jury. Beyond that, the prosecutor plays no role in the grand jury proceedings.

On the other hand, a lawyer in private practice usually is included among the 18 grand jurors and doubtless plays a role of some importance in the grand jury room. These lawyers, like the other grand jurors, are selected by the county sheriff. The method by which selection is made probably varies from county to county, but it is subject to no definable standards and remains disturbingly cloaked in mystery.

My description of the grand jury system obviously suggests that I have my own pet ideas for changing it. I am thus in the company of most lawyers who have examined the institution in wishing to tinker a bit according to the dictates of our own law practices.

Many prosecutors, for example, have objected to being excluded from the grand jury room and some have suggested that the grand jury requirement be abolished and that they be allowed to charge capital crimes in the same mannr as lesser felonies.

Defense lawyers have objected to their exclusion from the grand jury room and have tried to impose a requirement that a stenographic record be made of the testimony of witnesses. The latter argument is based primarily upon a desire for prior statements of prosecution witnesses to be used for cross‐examination during the trial.

I think all these suggestions for change are wrong‐headed enor

mously dangerous to individual rights. In the Federal system and in most other states, grand juries have come increasingly to be merely the compliant tools of prosecutors—indicting on direction, asking questions the prosecutor wants asked and no others, considering only the evidence the prosecutor wishes to have considered.

Grand juries have also brought into many courts an odor reminiscent of the Spanish Inquisition, conducting investigations to ferret out what is thought to be crime or, at least, socially or politically unacceptable conduct. It makes no difference whether the investigation is directed against the Mafia, the Watergate crowd, or the Weather Underground—grand juries in such cases are acting in an inquisitorial role utterly foreign to the individualistic concepts of the Bill of Rights.

In Connecticut the grand jury cannot investigate. It is limited to the role of reviewing a prosecutor's evidence in a particular case, interrogating the prosecutor's witnesses without restraint and deciding if there is enough evidence to justify making an arrest or holding a trial.

Upon reflection, the advantages of the Connecticut grand jury system seem enormous. The severe restrictions on the prosecutor's role, coupled with the defendant's right to be in the grand jury room and question witnesses, makes a “rubber stamp” grand jury as unlikely as possible. These restrictions, plus the refusal to allow a stenographic record to be made of the procedings, likewise prevent the grand jury from assuming an inquisitorial function.

Activist state court judges have increasingly been tampering with the structure of the Connecticut grand jury, particularly by a growing reluctance to follow the old custom of allowing defendants into the grand jury room. Such changes ought to be resisted. Likewise, the evil of delays such as is occurring in the Lorne Acquin case can be cured simply by following the law already in the law books—by refusing to allow judges to hold a person on a murder charge until a grand jury has indicted.

The Connecticut grand jury remains a healthy institution and an important protector of individual rights. Its problems, like those of most of our old constitutional institutions, are caused by ignoring the basic rules governing its operation and not by any inherent defect. What we need is not new laws, but simply judges and prosecutors who will obey the laws we already have. ■

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A version of this archives appears in print on August 28, 1977, on Page 433 of the New York edition with the headline: Grand Jury on the Line. Order Reprints|Today's Paper|Subscribe